(concurring in the result):
A
The majority opinion concludes “that appellant has failed to demonstrate that he suffered any prejudice as a result of counsel’s conversation.” 26 M.J. 152, 154. In my view, under the circumstances here, the burden rested on the Government to show that appellant suffered no prejudice — rather than on appellant to show the converse. *156See United States v. Stubbs, 23 M.J. 188 (C.M.A.), cert. denied, — U.S. -, 108 S.Ct. 142, 98 L.Ed.2d 98 (1987). However, I am convinced that the Government has carried this burden.1
B
The testimony given by a witness at the trial of appellant’s co-accused, Gettings, cannot qualify for admission under Mil.R.Evid. 804(b)(1). This hearsay exception applies only to former testimony given in a proceeding where the accused was a party. Thus, it was necessary for the Government to offer this testimony under Mil.R.Evid. 804(b)(5).
In my view, this exception is narrow in scope. Moreover, an accused possesses the constitutional right of confrontation independent of this rule. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Even so, I conclude that in this case the military judge did not err by admitting the exhibit. Cf. United States v. Hines, 23 M.J. 125 (C.M.A.1986). Of special importance to me are these circumstances: Appellant and Gettings relied on the same defense — namely, consent of the alleged victim; they both were represented by the same civilian counsel; after proper inquiry,2 the military judge determined that no actual conflict of interest existed between Smith and his co-accused; the witness had testified during the Article 32 investigation in appellant’s own case and had been subject to cross-examination at that time; and there was no significant variation between his testimony during the pretrial investigation and his testimony at the trial of the co-accused.3 I would have had greater difficulty with this case if the exhibit in issue had been testimony of the victim, rather than of some other witness; but under the circumstances here, I find no violation either of the Military Rules of Evidence or of the United States Constitution.
. Obviously, it would have been desirable if a trial counsel had been appointed whose participation was not subject to a question of conflict of interests. However, I do not know what options were available to the convening authority in choosing a prosecutor for appellant's case.
. See United States v. Devitt, 24 M.J. 307 (C.M.A.1987); United States v. Breese, 11 M.J. 17, 21 (C.M.A.1981).
. The majority opinion and the opinion in the court below refer to defense delays of trial. As far as I am aware, the defense delays were perfectly legitimate, in which event they have little relevance in determining whether the accused's right of confrontation has been adequately safeguarded. However, delays in getting to trial could legitimately be considered by the judge in determining whether to allow the use of former testimony or delay further to await a videotaped deposition. See United States v. Crockett, 21 M.J. 423 (C.M.A.), cert. denied, — U.S.-, 107 S.Ct. 130, 93 L.Ed.2d 74 (1986).